Appeal from the Superior Court of the District of Columbia (CMD19869-09) (Hon. Truman A. Morrison, III, Trial Judge)
The opinion of the court was delivered by: Ferren, Senior Judge:
Before RUIZ, Associate Judge, and FERREN and STEADMAN, Senior Judges.
Edward Dickens appeals his conviction for assault on a police officer (APO), arguing that he was convicted for intimidating an officer based on words alone, contrary to both the APO statute and the Constitution. We conclude that the words he used to incite an attack by his dog on the officer were not mere words that exempt him from prosecution under the statute or give him a defense under the First Amendment. We therefore affirm.
Appellant was charged with one count of APO*fn1 and one count of animal cruelty. After a bench trial, he was convicted of assault and acquitted on the cruelty charge. Appellant's conviction was the consummation of events that took place on September 13, 2009, when several Metropolitan Police Department officers, including Gregory Brown, Norman Kenny, Nathan Foster, and Jeremiah Mendez, were patrolling the 2200 block of Mount View Place, S.E. Officer Brown saw a man, later identified as appellant, walking with a pit bull on a leash and noticed a bulge in appellant's right waistband. Suspecting a weapon, Brown pulled his squad car alongside appellant and asked him how he was doing. Appellant looked at the officers but did not respond and continued walking.
Brown left his car and asked appellant if he could talk to him, whereupon appellant "took off running." Brown got back into his car to follow appellant while Officers Kenny and Foster chased him on foot. Officer Mendez got out of his squad car and also began to chase appellant. The pit bull, now unleashed, ran a few feet behind appellant. Foster and Mendez caught up to appellant and tried to restrain him. As they were attempting to handcuff him, appellant yelled "get them" or "get him." As short as possibly one second later, the pit bull growled and "lung[ed] at Officer Mendez," who felt the pit bull bite him from behind. The officer pushed the dog off of him and, upon seeing the dog charging at him again, shot it twice.
The judge concluded that he could not find beyond a reasonable doubt that the dog had attacked Mendez as a direct result of appellant's command, rather than as a natural response by the dog to the officers "laying hands and bringing to the ground its owner." Thus, the judge could not find that the dog attack itself constituted an APO by appellant. The prosecutor then presented an alternative theory: that appellant had "intimidated" the officer, within the meaning of the statute, by his command to the dog. The judge eventually agreed, concluding that the evidence was sufficient to convict appellant under that intimidation theory. "[W]hat we have here," said the judge, "is actually an action that is embodied in words . . . that seek to mobilize an instrumentality." The trial court found that appellant's "words were an effort to launch, using the instrumentality of his dog, an attack on the police."
Appellant contends that the trial court erred in denying his motion for judgment of acquittal because his words, "get them" or "get him," without corresponding physical action, provided insufficient evidence to sustain a conviction for APO. He also maintains that the APO statute is unconstitutionally overbroad and void for vagueness, both on its face and as applied.
The relevant language in D.C. Code § 22-405 (b) authorizes imprisonment for someone who "assaults, resists, opposes, impedes, intimidates, or interferes with a law enforcement officer." In In re C.L.D.,*fn2 we interpreted the statute to mean that "a person's conduct must go beyond speech and mere passive resistance or avoidance, and cross the line into active confrontation, obstruction or other action directed against an officer's performance in the line of duty."*fn3 Although we have recently interpreted other means of assaulting a police officer enumerated in § 22-405 (b), such as "interfere with"*fn4 and "resist, oppose, and impede,"*fn5 we have not addressed the meaning of "intimidate"*fn6 or the evidence necessary to sustain a conviction under that theory.
Appellant cites cases in which we have said that mere words are not enough to sustain a conviction for APO,*fn7 and he asks us to apply that same, restrictive standard to a charge based on "intimidation" under the statute. The cases he relies on, however, involve a different kind of speech from the words, in context, used here. In C.L.D., for example, the appellant refused to identify himself to a police officer, yelled obscenities at him, and told the officer that he was going to leave. When the officer instructed him to stay, the appellant shouted more obscenities. We concluded that although appellant, through his words, had "frustrated the officer's purpose," he did not "resist, oppose, or impede the officer by actively interposing some obstacle that precluded the officer from questioning him or attempting to arrest him."*fn8
In contrast with C.L.D., appellant's words -- "get them" or "get him" -- served a very specific purpose: to interpose the obstacle of his pit bull by using an attack command. This case is remarkably similar to one from the United States Court of Appeals for the Ninth Circuit. In United States v. Hoff,*fn9 an unarmed United States Forest Service officer cited the appellant for being in a restricted wilderness area without a permit. The next day, the officer returned to the area and saw that appellant and his two companions from the day before were still at their illegal campsite. As the officer approached, appellant said, "'go get 'em' three times to his companion's growling dog," which "'seemed to be tied up'" and "made no move."*fn10 The officer testified that she had felt "intimidated," especially by "the scene with the dog," and that she had left the campsite without attempting to issue another citation to the appellant.*fn11
The appellant in Hoff was convicted of "intimidating" a forest officer under a federal regulation*fn12 similar in relevant language to the APO statute before us here. He argued in the Ninth Circuit that he had used words protected by the First Amendment -- more specifically, that verbal "intimidation" was entitled to constitutional leeway, in contrast with the "less privileged 'threats'" proscribed by regulation or "assaults" forbidden by statute.*fn13 The court of appeals would have none of that. The court ...